Understanding Guardianship in New Jersey: Why It May Be Necessary and How to Obtain It
Guardianship is a critical legal tool that allows a person, known as the guardian, to make decisions on behalf of another individual who is unable to do so independently. In New Jersey, guardianship is often sought to protect seniors suffering from dementia, adults with intellectual or developmental disabilities, or other individuals who cannot manage their personal or financial affairs. Guardianship is necessary when a person is unable to sign estate planning documents such as a Power of Attorney, Healthcare Proxy and Living Will. Below, we’ll explore the reasons guardianship may be necessary, the types of guardianship available, and the process of obtaining guardianship in the Garden State.
Why You May Need Guardianship
- Person with Dementia and No Estate Plan: As dementia progresses, individuals may lose the ability to make sound decisions about their healthcare, living arrangements, or finances. Without the assistance of a trusted authorized agent or legal guardian, these individuals may be at risk of exploitation or harm. Guardianship ensures that someone is legally authorized to speak on their behald and protect their interests.
- Adults with Intellectual or Developmental Disabilities: When a child with an intellectual or developmental disability reaches the age of 18, they are legally considered an adult, regardless of their cognitive abilities. Guardianship allows parents or caregivers to continue making decisions for them, ensuring they receive the support they need.
- Individuals with Severe Mental Illness or Injury: In some cases, a person may become incapacitated due to a mental illness, traumatic brain injury, or other conditions. Guardianship enables someone to step in and manage their affairs during their period of incapacity.
Types of Guardianship in New Jersey
New Jersey law recognizes different types of guardianship to address varying levels of need:
- Guardianship of the Person: This grants the guardian authority to make personal decisions, such as those related to healthcare, living arrangements, and education.
- Guardianship of the Estate: This allows the guardian to manage the individual’s financial affairs, including paying bills, managing investments, and handling property.
- Guardianship of the Person and Estate: This is a full guardianship covering both personal and financial decisions. It is typically granted when the individual is deemed completely incapable of managing their affairs.
- Limited Guardianship: For individuals who can make some decisions independently but require assistance with others, the court may grant limited guardianship tailored to their specific needs.
The Guardianship Process in New Jersey
While it is recommended to consult an attorney, there are good self-help forms and guides available on the guardianship resources page of the New Jersey Courts website. Obtaining guardianship in New Jersey involves several legal steps designed to ensure the process is fair and in the best interest of the incapacitated individual:
- Filing a Verified Complaint: The process begins with filing a verified complaint (lawsuit papers) in the Superior Court, Chancery Division – Probate Part, along with supporting documents such as affidavits from two physicians or one physician and a psychologist. These professionals must describe in detail under penalty of perjury how the individual is incapacitated.
- Appointment of an Attorney: The court will appoint an attorney to represent the alleged incapacitated person. The attorney will interview next of kin, review medical records, and prepare a report to the court with recommendations. This ensures their rights are protected during the proceedings.
- Place Next of Kin and Other Necessary Parties on Notice: The verified complaint and supporting documents will need to be served on the alleged incapacitated person, their closest next of kin, and agencies who may be interested in the proceedings such as the Division of Developmental Disabilities.
- Court Hearing: A judge will review the evidence and hear testimony from all parties involved. The court will determine whether the individual is incapacitated and whether guardianship is necessary.
- Issuance of Guardianship Letters: If the court grants guardianship, the guardian will receive Letters of Guardianship, which formally authorize them to act on behalf of the incapacitated person.
- Ongoing Responsibilities: Guardians are required to act in the best interest of the individual and may need to file periodic reports with the court, particularly if they manage the person’s finances.
Alternatives to Guardianship
In many cases, proactive planning with legal documents can help avoid the need for guardianship. Key estate planning documents that will avoid the need for a guardianship include:
- Power of Attorney: A power of attorney is a legal document that allows an individual (the principal) to designate another person (the agent) to make financial and legal decisions on their behalf. This can cover tasks such as managing bank accounts, paying bills, and signing contracts. Establishing a power of attorney while the individual is still capable of making decisions can prevent the need for guardianship.
- Healthcare Proxy: A healthcare proxy, also known as a medical power of attorney, allows an individual to appoint someone to make medical decisions for them if they become incapacitated. This ensures that their healthcare wishes are respected without requiring court intervention.
- Advanced Directives: Advanced directives, including living wills, allow individuals to outline their preferences for medical treatment and end-of-life care. By clearly documenting their wishes, individuals can avoid the need for guardianship and ensure their healthcare decisions align with their values.
- Representative Payee: For managing Social Security benefits, a representative payee may be appointed without the need for full guardianship.
These documents are simple to execute when planned in advance and can often eliminate the need for guardianship proceedings.
Conclusion
Guardianship is a significant responsibility and should be pursued when necessary to protect the well-being of a loved one. In New Jersey, the process ensures that the rights of the incapacitated individual are safeguarded while providing the guardian with the legal authority to make critical decisions. If you’re considering guardianship, consult with an experienced attorney to navigate the legal process and explore the best options for your situation.